Citation: Chien Wen Lu v R [2002] NSWCCA 114
Court: NSW Court of Criminal Appeal
Date: 4 April 2002
Judge(s): Dowd J, Smart AJ, Einfeld AJ
Background
The appellant, a Taiwanese national, was convicted of robbery in company and demanding money with menaces following a 16-day trial in the District Court before Latham DCJ. The conviction arose from events on 4 March 1998 at a multi-storey apartment building in Pitt Street, Sydney, where the appellant and two co-accused allegedly assaulted and robbed a fellow Taiwanese student in a lift and car park before accompanying him to his unit and demanding money.
The complainant gave detailed evidence that the three accused bashed him as the lift travelled between floors, stole cash, identification documents, and a swipe card from him, and then accompanied him to his unit where they demanded he sign documents acknowledging a debt of approximately $8,700, later reduced to $4,000. Threats were also made referencing the complainant's family in Taiwan.
The appellant was sentenced to one year's imprisonment, suspended on a good behaviour bond. He filed a Notice of Appeal approximately six weeks after conviction, slightly outside the 28-day statutory period, and sought an extension of time to appeal.
Legal Issues
- Whether the extension of time to appeal should be granted
- Whether the verdict was unreasonable and unsupported by the evidence
- Whether the jury's verdict was unsafe and unsatisfactory
- Whether the trial judge erred in failing to direct a verdict of acquittal at the close of the Crown case
Decision
The Court granted the extension of time without opposition. The delay was short, the reasons given were reasonable (including the need to arrange fresh representation, a return to Taiwan to consult family, and securing funds for the appeal), and the grounds raised were considered to have sufficient substance to warrant consideration.
On the central ground that the verdict was unreasonable, Smart AJ conducted a careful review of the evidence. The court applied the test from M v The Queen (1994) 181 CLR 487, as affirmed in subsequent High Court decisions, asking whether there was a significant possibility that an innocent person had been convicted. Smart AJ concluded that his review of the evidence produced no reasonable doubt as to the appellant's guilt, and expressed that a guilty verdict would have been expected.
A key factual dispute concerned discrepancies between the complainant's recollection of the lifts he used and the building's lift operation records. The appellant placed considerable weight on the complainant's inability to reconcile his account with those records, a point the trial judge had also referenced in a direction to the jury. The Court found that this inconsistency did not undermine the verdict, noting it was plainly a matter for the jury, which had the benefit of seeing and hearing all witnesses over an extended period. The evidence of a witness named Melanie Fang provided partial but significant corroboration of the complainant's account.
The ground that the trial judge should have directed an acquittal at the close of the Crown case was also rejected. Dowd J observed that the elements of the offence had been established through the complainant's evidence, and that the corroborating evidence, while partial, was significant. The jury had been directed clearly on what was required before they could convict.
Orders Made
- Extension of time granted for Chien Wen Lu to appeal
- Appeal against conviction dismissed
Key Takeaways
- Discrepancies between a complainant's recollection and documentary evidence (here, lift operation records) do not automatically render a verdict unreasonable; such conflicts remain matters for the jury to resolve.
- Partial corroboration of a complainant's account can be significant, even where it does not corroborate every aspect of the Crown case.
- The Court of Criminal Appeal confirmed the application of the M v The Queen test: a verdict will only be set aside where the appellate court, making full allowance for the jury's advantage in seeing and hearing witnesses, finds a significant possibility that an innocent person was convicted.
- In granting the extension of time, the court accepted that a short delay, adequately explained by the practical difficulties of arranging representation and funding, was not a bar to appeal where the grounds raised issues of substance.
- No error was established in the trial judge's refusal to direct a verdict of acquittal, where the elements of the offence were supported by the complainant's evidence and material corroboration.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 10
Cases:
- M v The Queen (1994) 181 CLR 487
- Jones v The Queen (1997) 191 CLR 439
- Gipp v The Queen (1998) 194 CLR 406
- Fleming v The Queen (1998) 197 CLR 250
- Giam (1999) 104 A Crim R 416
- R v Smith [2000] NSWCCA 468